District of Delaware Considers Physical Products & Redundant Publications
Back in August, I pointed out that district courts continue to grapple with whether or not physical products described by prior art publications of an earlier Patent Trial & Appeal Board (PTAB) trial are subject to 315(e)(2) estoppel. That is, by virtue of utilizing a product manual in the earlier PTAB proceeding, whether the actual products corresponding to such a manual can be considered “raised, or reasonably could have been raised” under 35 U.S.C. § 315(e)(2).
The view of some districts has been that since physical products can’t be raised at the PTAB, such evidence is simply outside the scope of estoppel. Others take a narrower view, weighing the potential technical superiority of the physical product to the previously used publication. In another twist on this fact pattern, the District of Delaware recently considered whether the underlying evidence of these disputes should be the focus at all.